Ngwenya v Trustees for the time being of Sishen Iron Ore Company Community Development Trust and Another (J 3581/18) [2022] ZALCJHB 246 (17 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 3581/18

In the matter between:

ZANELE NGWENYA

Applicant

and

TRUSTEES FOR THE TIME BEING

OF SISHEN IRON ORE COMPANY

COMMUNITY DEVELOPMENT TRUST

First Respondent

VUSANI MALIEE

Second Respondent

Heard: 15 August 2022 (Considered in Chambers).

Delivered: 17 August 2022

Summary: Urgent application dismissed. Issue of costs remained – costs de bonis propiis considered. Affidavit of an attorney considered.

Held: (1) The attorney to pay the costs de bonis propiis.

JUDGMENT – COSTS LIABILITY

MOSHOANA, J

Introduction

[1] On 02 March 2022, in an ex tempore judgment, this Court dismissed an urgent application brought by Zanele Ngwenya (Ngwenya). This Court took a view then that an order

of costs was warranted. It further took a view that attorney Motlatsi Lekhesa (Lekhesa) of Lekhesa Attorneys as a legal representative

recklessly advised Ngwenya to launch what stood as a frivolous and vexatious application. Minded to hold Lekhesa liable for the payments of the costs, this Court afforded him 14 days, within which, to show cause why him or his practice should not be liable for the payment of the costs of the application. The 14 days so ordered expired on or about 18 March 2022. Indeed Lekhesa delivered two sets of affidavits stating the reasons why he should not be liable for costs. What follows hereunder is the ruling of this Court on the issue of the liability for costs.

Background facts

[2] The relevant facts had been laid out in the edited ex tempore judgment. It is unnecessary to repeat them in this judgment.

Evaluation

[3] As a matter of law, awarding costs involves an exercise of discretion. In the ex tempore judgment, this Court indicated that the matter before it is a civil matter and the principle of costs following the results must apply. What this Court is required to deal with now is whether those costs must be de bonis propriis – paid by the attorney who represented Ngwenya and punitive as demanded by the respondents. It is settled law that costs against legal representatives are an exceptional rare occasion. Such orders are reserved for conduct, which substantially and materially deviates from the standard expected of the legal practitioners, such that their clients, the actual parties to the litigation, cannot be expected to bear the costs. Another consideration is where the court feels compelled to mark its profound displeasure at the conduct of an attorney in any particular context[1].

[4] In Liebowitz t/a Lee Finance v Mhlana[2], the Supreme Court of Appeal regarded failure of an attorney who failed to act in various respects, which failure was aggravated by one of misleading the Court as a consideration to order costs de bonis propiis. Participating in a hopeless case is one conduct that may attract costs de bonis propiis[3].

[5] In casu, the attorneys of the respondents wrote a detailed letter and indicated clearly that the application that was to serve before this

Court was moot and hopeless. Clearly, an attorney who persists with a hopeless case deviates from the standard expected of legal

practitioners. Such deviation compels a Court to show its mark of profound displeasure. Lekhesa testified that he could not heed a call from the respondents since he does not take instructions from them. This evidence suggests that even if the call were sound in law, he would not have heed it because he is a creature of instructions.

[6] In Mashishi, this Court per Van Niekerk J felicitously stated the following:

‘[15] …By this he (Justice Rodgers) means that counsel must be able to formulate a coherent argument comprising a series of logical propositions which have a reasonable foundation in law or on the facts and which, if they all accepted by the court will result in a favourable outcome, even if counsel believes that one or more of the essential links are likely to fail. But counsel acts improperly when she is ‘quite satisfied’ that one or more of them will fail. In particular, there is an ethical obligation on counsel to ensure that only ‘genuine and arguable’ cases are ventilated and that this be achieved without delay…’

[7] The application dismissed by this Court was launched in terms of section 77 (3) of the Basic Conditions of Employment Act (BCEA)[4], in the circumstances where Lekhesa knew that there is no contract of employment, upon which the said claim may be predicated. In the Court’s view, this is not an ordinary error of law that may be expected from a practitioner. This is egregious and it is not readily to be expected from a reasonable practitioner. When the application was launched, Ngwenya was dismissed. Surely a reasonable practitioner, would have heeded the call that the matter is moot and hopeless, particularly under section 77 (3) of the BCEA. It can only take a reckless attorney to foray to a Court with such an unarguable case. Having been dismissed, the remedy lied in the LRA and not the BCEA. For instance, in Sihlali and 96 others v City of Tshwane and another[5], this Court issued a clear and stern warning that in the absence of exceptional circumstances, the urgent Court should not be approached

because the risk of costs being awarded is more surreal than illusionary[6].

[8] In this instance, Lekhesa advised Ngwenya to launch section 77 (3) proceedings in an instance where no contract of employment existed. Certainly Ngwenya as a layperson would not have known that in order to sustain a case premised on section 77 (3) an employment contract must exist. Ngwenya would not have instructed Lekhesa to proceed nevertheless, in the absence of an employment contract.

[9] It is indeed, so that this Court per Acting Justice Mabaso on 14 October 2020 afforded Ngwenya an opportunity to amend her papers. There exists no order by this Court allowing such an amendment. All Mabaso AJ did was to postpone the application sine die to allow Ngwenya an opportunity to amend his papers. Despite this clear and lucid order, Lekhesa testified that:

’16 …The Honourable Court would not have allowed for the amendment if the matter had no merits. In fact, the defence of mootness fell away when the Honourable Court allowed for the amendment of the application…

[10] The above evidence is misleading. This Court did not allow an amendment, which as contended made the defence of mootness to fall away. In the replying affidavit of the dismissed application Ngwenya testified that amendments were put before Court and reasons were given for the amendments, hence the Court granted the leave to amend. Ngwenya is a layperson and will have no understanding of leave to amend having been granted.

[11] Regard been had to the above, this Court reaches a conclusion that this is a hopeless case which was recklessly pursued by Lekhesa on behalf of Ngwenya. He clearly knew that it is a hopeless case and it cannot be an arguable case.

[12] In the results, I make the following order:

Order

1. This Court confirms its order of 2 March 2022 that the costs of this application must be paid by attorney Motlatsi Lekhesa or his firm of attorneys on a scale of an attorney and own client scale.

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

None.

[1] See Multi-Links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd; Telkom SA Soc Limited and Another v Blue Label Telecoms Limited and Others [2013] 4 All SA 346 (GNP).

[2] [2006] 4 All SA 428 (SCA).

[3] See Mashishi v Mdladla and Others [2018] 7 BLLR 693 (LC)

[4] Act 75 of 1997.

[5] (2017) 38 ILJ 1692 (LC).

[6] Paragraph 29 of the judgment.